The Kirkuk/Census Ruling of the Federal Supreme Court

In the recent resurge of discussion of the planned 2010 census for Iraq, there has been much focus on the decision of the ministry of planning to scrap the “ethnicity” field from the questionnaire. This move has prompted strong Kurdish reactions since the Kurdish leaders see the results of such a census as relevant to the settlement of Kirkuk and other so-called “disputed territories” as per article 140 of the constitution. (Typical of the complex Iraqi situation, though the minister of planning is in fact himself a Kurd!) What has received less attention, however, is that the move by the ministry has been based on a ruling by the Iraqi federal supreme court that specifically tackles the relationship between the 2010 census and article 140.

In its meeting on 19 October, the federal supreme court dealt with a request from the secretariat of the Maliki government relating to the upcoming census. The question from the government is framed as follows, “Does the census planned for December, which includes a field called “ethnicity” on its questionnaire, have any relationship to article 140 of the constitution [on disputed territories such as Kirkuk]?”

The answer from the court is interesting: It says the census law of 2008 falls within the ordinary decennial censuses that were held in Iraq in the previous century, ending with the 1997 census. The court specifically says that the upcoming census has no relationship whatsoever to article 140, and that article 140 calls for a separate count in the disputed territories. The December 2010 census, by way of contrast, is for all of Iraq.

Based on this ruling from the court, the ministry of planning has apparently resolved to go ahead without the ethnicity field, since it has limited relevance for planning purposes, all Iraqis being equal in terms of government services etc. It is an interesting ruling that should perhaps serve as a warning to the Kurds about what sort of miracles the king they are currently in the process of making will be in a position to deliver at the end of the day.

Note first that the Maliki government has now stated that they will go forward with the ethnicity question. Although Planning Minister Baban was quoted as “deciding” or “declaring” that the ethnicity question would not be used, a “clarification” has come out saying that it would be, and that his statement was just a “proposal.”

Also, I read the Court’s decision differently. It does not expressly say that the census must include or not include ethnicity, but by mentioning that repeated past census have included “demographic” information, it implies that.

Reidar Vissersaid

The latest I have seen from the MOP is a bayan datelined Sunday in which they say they are in correspondence with the Kurdistan authorities regarding the decision from the court and have made proposals regarding the ethnicity field. They probably wouldn’t do that if they were in perfect agreement:http://www.mop.gov.iq/mop/index.jsp?sid=3&nid=381&y=2010&m=9&d=24
They have yet to receive a reply, and UNAMI is also involved.

As for the court’s decision, I don’t think there is any suggestion in my post that the court instructed the ministry do anything specific regarding the ethnicity field as such; rather that was how the ministry chose to respond, i.e. the court decision apparently antedated the decision to scrap the ethnicity field. The bigger issue, obviously, is the insistence by the court that the census is unrelated to 140, meaning there will have to be a different census before any referendum pursuant to that article – meaning, as far as the Kurds are concerned, that this will take a lot more time than they like to think.

I interpreted your post the way I did because of the reference to the ruling being a “waring” to the Kurds near the end. Perhaps I misread your intent there.

On the broader issue, I think this is a game Maliki is playing; postpone the census so you have enough time to negotiate with the Kurds (remembering that he couldn’t get serious with them until after the Sadr deal); maintain leverage over them by having a lower level official hint that you might delete the ethnicity field; then once they have agreed in principle to your reelection have an official of greater prominence, who obviously speaks for you directly, contradict the previous statement.

As for reading the tea leaves on the current status of the Maliki-Kurd relationship, my understanding is that the only remaining point of dispute is that section about the Kurds withdrawal collapsing the government. At least that is what they are saying.

As for this decision and Kirkuk, I think it is vague enough not to be a problem. The Court was not asked if this was an “alternative” to the Kirkuk census; I think this vague language is more a way to avoid getting the court too directly involved in the issue.

Of course if you believe that Baban is really acting independently of Maliki – if I remember, he is Sunni and was once part of the Accord Front – then you may have to modify that somewhat; maybe he wasn’t in on the game. But I think everything Maliki is doing on this issue is tied directly to the negotiations.

Reidar Vissersaid

But Kirk, your Allaq quote, even though it is dated 24 October in the Dawlat al-Muwatin article, is much older, probably around 20 October, since it was published already in the early morning of 21 October by many newspapers, e.g. http://www.iraqoftomorrow.org/breaking-news/88009.html

It seems odd that Baban would say what he said four days later unless there was some truth to his suggestions. I am not suggesting he is acting independently, since he is as far as I know a member of SLA now. Rather I think this all reflects a grand Maliki strategy of postponing 140 until the distant future (even though he will commit to it in principle in negotiations with the Kurds), if need be through involving the other (central & southern) governorates (the Nukhayb issue etc.) so that everything takes an awful lot of time. The decoupling of the general census from the 140 census could be one element in this, and the court’s ruling is crystal clear on the distinction between the two.

“The Court was not asked if this was an “alternative” to the Kirkuk census”
Kirk, I don’t think there is vagueness in the wording or the intention of the court decision, the regular census cannot be used for article 140, even if it had demographic information, period. But I agree with the rest of your analysis even when you are looking at this decision as a strategy; I am somewhat inclined to see Maliki’s decisions are strictly tactics right now.
I would like to add a concern regarding the way the ethnicity field is presented as an empty space, which makes it possible to alter the field and with no instructions on whether mixed ethnicities are entered, also there are many Kurds who don’t speak Kurdish. Again, I prefer direct UN run census with full ethnicity information collection and residence before 2003 to anything organized by GOI and KRG.

Reidar Vissersaid

Thanks! Must be one of the most interesting Islamic rulings ever:
الإسلام يعتبر تغيير القومية جريمة
Alas, this luminary Mulla Abdullah fails to provide any scriptural references for his innovative jurisprudence.

Alisaid

Reidar Vissersaid

Precisely. I always thought Islam was supposed to be about transcending ethnic and other parochial subdivisions instead of deepening them. Kermanshahi, are you there to make sense of this Mulla Abdullah for us?

Kermanshahisaid

Reidare, the problem is that in a country like Iraq, who’s ethnic divisions have been deepened by a history of Arab-Nationalist rule and which has large religious divisions, it is difficult to unite everyone as Muslims.